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Attorney-General v DGK

 

[2011] QSC 73

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

DELIVERED ON:

6 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2011

JUDGE:

McMurdo J

ORDER:

It will be ordered that the respondent be subject as to the following requirements until 6 April 2016.  The respondent must:

  1. report to an authorised Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of release from custody and at that time advise the officer of his current name and address;
  2. report to, and receive visits from, a Corrective Services officer as determined by Queensland Corrective Services;
  3. notify a Corrective Services officer of every change of his name, place of residence or employment at least two business days before the change happens;
  4. be under the supervision of a Corrective Services officer for the duration of the Order;
  5. comply with a curfew direction or monitoring direction;
  6. comply with any reasonable direction under section 16B of the Act given to him;
  7. comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the Order;
  8. not leave or stay out of Queensland without the permission of a Corrective Services officer;
  9. not commit an offence of a sexual nature during the period of the Order;
  10. not commit an indictable offence during the period of the Order;
  11. reside at a place within the State of Queensland as approved by an authorised Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;
  12. if this accommodation is of a temporary or contingency nature, comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services;
  13. respond truthfully to enquiries by an authorised Corrective Services officer about his activities, whereabouts and movements generally;
  14. not have any direct or indirect contact with a victim of his sexual offences;
  15. disclose to an authorised Corrective Services officer upon request the name of each person with whom he associates and respond truthfully to requests for information from an authorised Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour;
  16. notify an authorised Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or usually driven by him, whether hired or otherwise obtained for his use;
  17. abstain from the consumption of alcohol;
  18. abstain from the consumption of illicit drugs;
  19. submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by an authorised Corrective Services officer;
  20. disclose to an authorised Corrective Services officer all prescription and over the counter medication that he obtains and if he takes prescribed drugs, he shall take them only as directed by a medical practitioner;
  21. not visit premises licensed to supply or serve alcohol, without the prior written permission of an authorised Corrective Services officer;
  22. abstain from using any intoxicating inhalants including, but not limited to, petrol, glue, paint or solvents for the duration of this Order;
  23. attend upon and submit to assessment, treatment, and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by an authorised Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist;
  24. permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this Order;
  25. attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by an authorised Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;
  26. develop a risk management plan in consultation with a treating psychologist or psychiatrist and discuss it as directed with an authorised Corrective Services officer;
  27. not establish or maintain any unsupervised contact with a child under age of 16 years except with prior written approval of an authorised Corrective Services officer, other than in the case of the respondent’s own child if agreed between the respondent and the mother of the child or approved by the order of a court under the Family Law Act 1975.  The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such unsupervised contact can take place;
  28. seek written permission from an authorised Corrective Services officer prior to joining, affiliating with or attending on the premises of any club, organisation or group where it is reasonably suspected that there is child membership or participation;
  29. advise an authorised Corrective Services officer of any telephone number regularly used by him.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – REGISTRATION, REPORTING AND LIKE MATTERS – where the Attorney-General seeks a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether the respondent was convicted of multiple sexual offences – where the respondent has completed various programs and courses whilst in custody – where the respondent has a history of substance abuse and dependence – where the respondent has been diagnosed with anti-social personality disorder – whether the respondent is a serious danger to the community – what are the appropriate requirements of the supervision order – what may be ordered as a requirement under s 13(5)(b) of the Act – what is the appropriate period of operation of the supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 9A, s 13, s 16

Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, applied

COUNSEL:

M Moloney for the applicant
JJ Allen for the respondent

SOLICITORS:

Crown Solicitor for the applicant
Legal Aid Queensland for the respondent

[1] The Attorney-General seeks a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘the Act’).  Ultimately he did not seek a detention order.  On behalf of the respondent, it is conceded that a case is established for a supervision order.  The issues involve the period of the supervision and what should be its requirements.

[2] The respondent was born on 15 November 1981.  He has been in jail for much of his life so far.  Most recently, on 15 October 2002, he was sentenced to eight years imprisonment for an offence of rape.  With a period of pre-sentence custody, that eight years expired on 15 August 2010.  He has remained in prison since because of an order made on 8 July 2010 under s 9A(2)(b) of the Act. 

Criminal history

[3] His criminal history began in the Childrens Court in 1995.  In August 1996, when he was 14, he committed two offences of aggravated assault upon a six year old girl.  He was not sentenced upon the basis that this was a sexual assault.  The complainant said that he had punched her and was pulling at her dress, having struck her on the head and dragged her into an abandoned house.  He was ordered to perform 20 hours community service.  On the same day, he was sentenced for an offence of receiving property suspected of being tainted, and was given 12 months probation. 

[4] He breached that probation and was re-sentenced in February 1997.  At the same time he was sentenced in the Childrens Court for several offences of the break and enter of a dwelling house with intent and stealing as well as one of an assault with intent to steal and the use of actual violence.  He was subjected to various terms of detention, the longest of which was three years.  Subsequently, he was sentenced for two counts of assault (one occasioning bodily harm) for which he was given periods of detention cumulative upon his then current sentence.  There followed other convictions for unlawful assault for which he was given concurrent terms of detention. 

[5] He was before the Magistrates Court several times during 1999, on charges ranging from behaving in a disorderly manner, possession of dangerous drugs, obstructing police and breaching a bail undertaking.

[6] In March 2000, he was convicted of two offences of indecent assault upon young women.  In each case he had entered the bedroom of the complainant, a stranger to him, and began to remove her clothing.  Once the complainant was awake, he left.  One complainant was 14 and the other 19 years of age.  For those offences, as well as for a number of property offences and offences of violence, he was sentenced in the District Court to a 12 month Intensive Correction Order.  The sentencing judge found that he was intoxicated when he committed the offences.  She said that the offences would have required a custodial sentence but he had spent three months on remand.  Shortly afterwards he breached the Intensive Correction Order by committing a property offence and then two offences of assault.  This resulted in his receiving an overall sentence of nine months imprisonment by orders made in the District Court in October 2000.

[7] He was before the Magistrates Court in January 2002 for a relatively minor property offence.  He was before the Magistrates Court again in September 2002 when he was sentenced to various terms resulting in a period of six months imprisonment, for assault, assault occasioning bodily harm and entering a dwelling and committing an indictable offence.

[8] In the District Court on 15 October 2002, he was sentenced to that term of eight years for the offence of rape.  At the same time he was sentenced to terms of two years for offences of the indecent treatment of children under 16 years.  The rape was committed in July 2000 and the other offences on 17 and 20 April 2002.  Those three terms were ordered to be served concurrently.  The sentencing judge recommended that whilst in custody he undergo counselling and courses in relation to sex offences, drugs and alcohol and anger management. 

[9] In 2006 and 2007, he was sentenced in the Magistrates Court for offences of wilful damage and destruction of property, whilst in prison. 

[10] The rape offence involved an attack upon a woman who was going home in the early hours of the morning.  He pulled the complainant along the ground to a darkened area where despite the complainant’s struggle, he physically overpowered her, removing her jeans and underwear before raping her. 

[11] The other offences for which he was sentenced in October 2002 involved complainants who were 13 and 14 years old.  In one case, the complainant was the respondent’s sister, staying at her grandmother’s residence.  The respondent went into her bedroom while she was in bed, put his hand inside her shorts and touched her vagina.  He left when she asked him to stop.  In the other offence, the complainant was the respondent’s cousin, who was staying in the same house.  During the night he committed a similar offence upon this girl and again left when the girl told him to do so.

[12] The sentencing judge described the rape as “an extremely serious offence”.  He said that the respondent represented “a substantial risk of re-offending in relation to sexual offences”. 

[13] The respondent has participated in a number of courses or programs whilst in custody.  More recently he has completed the Smart Recovery Program in 2008, the Getting Started:  Preparatory Program in 2009 and the Sexual Offending Program for Indigenous Males in 2010.  The report from that first program shows that he successfully completed it with a willingness to learn and his development of a relapse prevention and management plan.  From the Getting Started program, he received a report that his participation was variable but that he ultimately completed the program to an acceptable standard.  He began the Sexual Offending Program in August 2009.  He was suspended from that program about half way through it, before returning and completing it last November.  The report recommended that if released “onto a period of parole” (sic) [the respondent] would benefit from the continual development of his social skills and monitoring of the effectiveness of his developed behavioural strategies”. 

Evidence of the psychiatrists

[14] There is evidence from three psychiatrists:  Professor James, Dr Harden and Dr McVie.

[15] Professor James examined the respondent in May 2010.  He wrote[1] that the respondent’s history strongly indicated a diagnosis of serious substance abuse (alcohol), substance dependence (marijuana) and an Antisocial Personality Disorder.  There was no evidence of any major psychiatric illness.  In his opinion, the respondent’s alcohol consumption was more in the nature of serious binge drinking rather than a true dependency.  As to marijuana, his history indicated a “significant daily use, and a more likely diagnosis of true dependency”.  He was not psychopathic and did not merit a diagnosis of Sexual Paraphilia or Sexual Sadism.  He was not considered by Professor James to be a paedophile. 

[16] The assessment of his risk of re-offending, upon an actuarial or historical basis, resulted in the respondent scoring 7 on the Static-99 test, indicating a high risk of future sexual recidivism.  On the HCR-20 assessment, Professor James scored the respondent at 24 out of a possible 40, which was largely affected by a high (risk) score from his history.  Upon the Sex Offenders Appraisal Guide, Professor James placed the respondent in a category of persons who are likely to re-offend sexually within seven years.  And upon the Violence Risk Appraisal Guide, Professor James placed the respondent in a group, 76% of whom were likely to re-offend violently within seven years and 82% of whom are likely to re-offend within ten years.  He noted that upon the actuarial assessments, his findings were very comparable with those of Dr Harden.  He said that they indicated a high risk of re-offending, if “dynamic” variables are not included.  As to that “dynamic” perspective, Professor James wrote that the respondent’s long history of offending, including sexual offending, could be understood by reference to “his extremely deprived developmental history, leading in turn to serious and chronic substance abuse”. 

[17] In that report of June last year, Professor James wrote that the respondent should undertake therapeutic programs prior to release from prison and that were he to be released, there should be a requirement of total abstinence from alcohol and all intoxicants. 

[18] Professor James wrote a further report in December, having received a copy of the report of the respondent’s participation in the Sex Offender Treatment Program which was compiled by the program’s facilitators.  Professor James considered that the respondent’s completion of that program to be “a major step forward”.  He wrote that there was “[s]ome slight cause for additional optimism” from the fact that some participants who have been perceived as most “difficult” in the initial stages of the program, often do better in terms of recidivism than others who are more passive. 

[19] In his oral evidence, Professor James said that if a supervision order is to be imposed, he suggests that it be for a term of five years.  He gave this evidence:

 

“And can you explain why you’d suggest only five years?--  Yes, in the past, again outlined in my report, that [the respondent’s] offending history has been quite dense.  In other words, he’s hardly been - had a period without offending.  In the time since he’s been in prison, which is now eight years, he’s done the programs that we’ve just discussed, he’s done a lot of maturation, I think, in my view, and he’s continued to develop in a way which was started when he was about 14 or 15 in the Cleveland Centre.  If a person with that kind of history, but I also say can that kind of progress, can maintain himself for five years without significantly reoffending, then I think that the remainder of his life is likely to go well.  Five years sounds a short time because five’s a small number.  There’s 260 weeks, and that’s 260 Friday nights, 260 Saturday nights, 260 weekends, and I think with his history if he actually shows that he has been able to cope with those periods of risk, if you like, and establish his life as well, then I think that augurs well for the future, and I think anything more than that is probably unnecessary.

Is [the respondent’s] age a factor in duration of the order?--  Well, it would be if it was based simply on lust being the prime motivation of his offending.  In other words, if he’d been a hypersexual kind of person.  I don’t think there’s evidence of that, really.  I think he’s been a very damaged person, and again I come back to the fact that most, if not all, of his offending has occurred when he’s been very drunk, he’s had very little memories even of those, and that alcohol and marijuana use in turn has been symptomatic of the damage done by his early developmental history.  So I think that age, which is usually related to the gradual subsidence of sexual impulse behaviour is less relevant in his case than would be the case in someone who was primarily driven by hypersexual motives.”

[20] Dr Harden examined the respondent in May 2009.  He then wrote that the respondent’s offences against young adolescents did not constitute Paedophilia but “they may well represent some kind of sexual preference for the 13 to 14-year-old female age range and this is of some concern”.  He referred to his significant criminal history quite apart from sexual offending, and that his history was also “marked by severe personal, educational and employment instability”.  He said the respondent clearly met a diagnosis of Antisocial Personality Disorder and suffered from alcohol abuse and probable dependence.  He made a number of actuarial assessments and said that these and “structured professional judgment measures” suggested that the respondent’s future risk of sexual re-offending was high.  He recommended that the respondent be monitored by means of a supervision order, which required him to abstain from alcohol and drug use and undergo a random testing regime.  He made other recommendations for his participation in a High Intensity Sex Offender Program while incarcerated and then to participate in appropriate programs in the community.

[21] He wrote a further report on 23 March 2011 with the benefit of the account of the respondent’s participation in the Sexual Offending Program.  He remained of the opinion that the respondent is “at high risk of violent and sexually violent recidivism”.  And he remained of the opinion that “if he were to reoffend based on this previous sexual offence it would most likely be whilst intoxicated and might well be opportunistic and hard to predict without close monitoring of acute risk factors”.  He wrote that a supervision order taking into account the critical factors would decrease his recidivism risk in the community to some extent. 

[22] As to the duration of a supervision order, he wrote that the respondent’s risk of recidivism will decrease slowly over time and that:

 

“I recommend that supervision continue for a ten-year period placing him in his late 30s at the time of ceasing supervision, an age at which individuals with antisocial personalities tend to generally have some reduction in aggression risk.”

He adhered to that view in his oral evidence.  But he agreed that his risk of recidivism would be substantially reduced if he reached the point of five years under supervision and with no breach of the requirements of the order. 

[23] Dr McVie interviewed the respondent in May last year.  She assessed his risk of reoffending according to the same or similar measures as those used by the other psychiatrists, and with substantially the same results.  She assessed him as having an Antisocial Personality Disorder but no major mental illness.  The assessment tools, such as the Static-99 test, indicated to her that he was at high risk of recidivism for both sexual and non-sexual violence.  She wrote that he will require a high level of supervision in the community and that he would need to abstain from alcohol and cannabis, as intoxication had been a feature of his behaviour leading to his previous sexual offending. 

[24] Dr McVie wrote a supplementary report in December with the benefit of the account of the respondent’s participation in the Sexual Offending Program.  She remained of the opinions expressed in her first report.

[25] In that December 2010 report, Dr McVie recommended a period of supervision for a minimum of five years.  However, in her oral evidence, she agreed with Dr Harden that the period should be ten years.  She explained that change as follows:

“On review, I think I probably learnt a little bit more about supervision orders over the last 12 months, having had more experience with [the Act] and seeing more supervision orders and seeing how people breach the orders, and on reviewing [the respondent’s] assessment, I would tend to follow the suggestion of Dr Harden that a longer period of supervision would be more appropriate in this case.”

[26] In their oral evidence, the psychiatrists were taken to some of the requirements which had been within a draft supervision order proposed by the Attorney-General.  They agreed that some of those requirements were not apt in the respondent’s case.  I should record that ultimately counsel for the Attorney-General removed from the suggested requirements the following:

 

“xxxiv.not without reasonable excuse be within 100 metres of schools or child care centres without the prior written approval of an authorised Corrective Services officer;

xxxv.not visit public parks without the prior written approval of an authorised Corrective Services office;

xxxvii.allow any device including, but not limited to, a telephone or camera to be randomly examined, and provide account details and telephone bills to an authorised Corrective Services officer upon request.”

What should be ordered?

[27] I am satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order.[2]  That finding is amply supported by the evidence and accords with the respective arguments.  As already noted, the issues are now ones of the appropriate period of operation and terms of a supervision order.  I will discuss what should be the requirements of the order before returning to the question of its duration.

Requirements

[28] In consideration of the terms and duration of a supervision order, the paramount consideration is the need to ensure the adequate protection of the community.[3]  But that is not the only consideration.  The determination of these questions, as with a decision of whether a detention order is necessary, involves an assessment of the relative risk of the prisoner committing another sexual offence and then a consideration of what order is required to avoid an “unacceptable risk”, as that term is used in s 13.  As I have said previously,[4] the consideration of what level of risk is unacceptable is not a matter for psychiatric opinion.  It is a matter for judicial determination, requiring a value judgment which balances the need for community protection with the rights of an individual who has fully served the term of imprisonment which a court has judged to be appropriate.  And the protection of the community is ultimately served, in a case such as this where a supervised release is appropriate, by making an order in terms which are not so burdensome that they would impede the prisoner’s rehabilitation, either by unnecessarily restricting his participation in the everyday life of his community or by making it so difficult for him to comply with the order that his regime of supervision is likely to fail. 

[29] With those observations, I go to the requirements of the order proposed by the Attorney-General.  The first nine of those requirements must be imposed, corresponding as they do with s 16 of the Act.

[30] The proposed requirement (x) is that the respondent not commit an indictable offence during the period of the order.  This requirement would be more extensive than that which must be imposed according to s 16(1)(f), which is that the prisoner not commit an offence of a sexual nature during the period of the order.  But each of the psychiatrists agreed with the proposal.  Professor James said that were the respondent to commit any indictable offence, this would be “an indication generally of less control than would be prudent, wise and safe, and would … then quite rapidly raise the risk … of him offending in a sexual way as well”.  The same view was expressed by Dr Harden, who said that “general offending is of concern anyway because of the rule breaking behaviour as a risk factor for sexual recidivism and specific offences that relate more to the things that he has – the offences he’s committed in the past …”.  Dr McVie said that some other types of offences, such as any offence related to physical violence, offences involving drugs or alcohol or “offences related to break and enter”, would indicate an increased risk of sexual offending. 

[31] The Act is concerned with the protection of the community from the commission of sexual offences.  But in this particular case, I am persuaded that the commission of other indictable offences, particularly those described by Dr McVie, would indicate that the respondent’s condition at that time would make for a higher risk of committing a sexual offence.  I am persuaded to impose this requirement. 

[32] The proposed requirement (xi) is that the respondent would:

 

“seek permission and obtain approval from an authorised Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment.”

I do not accept that such a requirement is reasonably necessary.  I would accept that some types of employment would be unsuitable, such as working in a bar.  But that would be precluded under another requirement, to which there is no challenge, that he not visit licensed premises without the prior written permission of an officer.  The requirement for approval for what is described as volunteer work could be problematical.  That is a term which covers a wide scope of activity.  It is not demonstrated that some particular volunteer work would increase the risk of a sexual offence.  And there will be other requirements in relation to contact with children. 

[33] The proposed requirement (xii) is that the respondent notify a Corrective Services officer of the “nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed at least two (2) days prior to the commencement or any change”.  Section 16(1)(c) necessitates a requirement that the prisoner notify a Corrective Services officer of every change of the prisoner’s name, place of residence or employment at least two business days before the change happens.  The proposed requirement (iii) will be in those terms, for which the evident purpose is to keep the officer properly informed of matters relating to the respondent’s whereabouts.  This proposed requirement (xii) goes much further.  For effectively the reasons given in the previous paragraph, I am not persuaded to impose this requirement.

[34] There is no opposition to requirements as to the respondent’s residence, as proposed within (xiii) and (xiv) of the draft ((xi) and (xii) in the order I will make).  However there is also a proposed requirement (xv), that the respondent “not reside at a place by way of short term accommodation including overnight stays without the permission of an authorised Corrective Services officer”.  This requirement seems unduly restrictive.  According to the submissions for the Attorney-General, it might require, for example, the permission of an officer for the respondent to stay at a motel in the course of a journey.  In that circumstances, the respondent would not be residing at that place according to the ordinary meaning of residence, yet counsel for the Attorney-General said that such an event would be within this condition.  In my view there is sufficient protection from the requirement for permission to be given for any place of residence. 

[35] The proposed requirement (xx) is that the respondent would “submit to and discuss with an authorised Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed”.  But sufficient protection would be provided in this respect by the proposed requirement that he “respond truthfully to enquiries by an authorised Corrective Services officer about his activities, whereabouts and movements generally”.  To impose this further requirement that week by week, for five years at least, he should submit and discuss his plans and proposals for the week ahead seems to be unduly burdensome and not especially productive.  I am not persuaded to impose it.

[36] The proposed requirement (xxi) is that he would “if directed by an authorised Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by authorised Corrective Services officer who may contact such persons to verify that full disclosure has occurred”.  For the respondent, it is submitted that the express permission for the officer to contact such a person is not something which can be an element of a supervision order.  Section 13(5)(b) permits an order to be made that the prisoner be released from custody subject to the requirements the Court considers appropriate.  I accept this submission for the respondent.  But there is also the question of whether the balance of this proposed requirement should be included in the order.  At least in this prisoner’s case, it is difficult to see the proper purpose which would be served by this requirement.  For example, it does not seem to be a feature of his sexual offending that he is particularly at risk in the company of women with whom he has established a relationship, such that, it might be argued, those women should be protected by knowing about his past.  This requirement has the potential to impede his integration into the community without any commensurate benefit for his risk of reoffending.  And it is proposed in terms which are particularly demanding, for he would have to make “complete disclosure”, not only of what will be the very extensive and detailed terms of this order, but also of “the nature of his past offences”.  I am not persuaded to impose any part of this requirement.

[37] The proposed condition (xxxii) is directed to any “contact” with a child under the age of 16 years.  It would require him to obtain the prior written approval of an officer (other than in the case of his own child, if agreed between him and the mother of the child or approved by an order of the Court under the Family Law Act 1975).  More specifically, this approval would be required before he could “establish or maintain any supervised or unsupervised contact with a child under the age of 16 years including undertaking any care of children”.  I accept such a requirement is appropriate for unsupervised contact.  I am not persuaded that it is necessary for supervised contact.  A further part of this condition is that he should “fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place”.  I accept that such a requirement would be appropriate for unsupervised contact.  A further sentence within this proposed requirement would be to permit Queensland Corrective Services to disclose information about him to guardians or caregivers or external agencies in the interests of ensuring the safety of children.  Again, I accept the submission for the respondent that such a term is not a requirement and therefore should not be included in the order. 

[38] The proposed requirement (xxxiii) is that the respondent should advise an officer “of any repeated contact with a person he knows to be a parent of a child under the age of 16” and that, if directed by an officer, he is to make complete disclosure of the terms of the supervision order and the nature of his past offences to any person nominated by an officer who may contact such persons to verify that full disclosure has occurred.  Again, that last element, the permission to be given to the officer, is not a requirement and cannot be included.  And I am not persuaded to otherwise impose this requirement.  It is far too broad.  For example, he might be thought to have “repeated contact” with anyone with whom he regularly works.  So should he hear that a workmate is a parent of a child under 16, he would have to advise the officer of that circumstance.  Potentially, he could be required to disclose the order and his past offences to such a person, although there is no prospect of any contact between the respondent and the child.  Counsel for the Attorney-General was unable to explain how the proposal could be made more specific so that it would be directed to whatever risk prompted the proposal in this particular case. 

[39] Otherwise the requirements which were proposed (with some amendments to the draft as agreed between counsel) are appropriate and will be included in the order.

Duration of the order

[40] I return to the question of the duration of the order.  As an appropriate regime of supervision is conducive to lessening the risk of reoffending, it might be thought by some to be desirable in general to make a period of supervision longer rather than shorter.  However, again there is a judgment to be made as to what risk is unacceptable.  Dr Harden agreed that were the respondent able to comply with these stringent conditions of supervision for a period of five years, at that point his risk of re-offending would be substantially reduced.[5]  In my view, were that to occur, the prisoner would have demonstrated a remarkable change to what has been thus far his adult life outside prison.  Of course there will be a risk beyond a period of five years.  But it could also be said that there will be a risk beyond ten years.  Ultimately I am not persuaded that the risk of re-offending, beyond a period of five years of full compliance with this order, would be unacceptable.  Accordingly, the order will be fixed at five years. 

Orders

[41] It will be ordered that the respondent be subject as to the following requirements until 6 April 2016.  The respondent must:

 

  1. report to an authorised Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of release from custody and at that time advise the officer of his current name and address;
  2. report to, and receive visits from, a Corrective Services officer as determined by Queensland Corrective Services;
  3. notify a Corrective Services officer of every change of his name, place of residence or employment at least two business days before the change happens;
  4. be under the supervision of a Corrective Services officer for the duration of the Order;
  5. comply with a curfew direction or monitoring direction;
  6. comply with any reasonable direction under section 16B of the Act given to him;
  7. comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the Order;
  8. not leave or stay out of Queensland without the permission of a Corrective Services officer;
  9. not commit an offence of a sexual nature during the period of the Order;
  10. not commit an indictable offence during the period of the Order;
  11. reside at a place within the State of Queensland as approved by an authorised Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;
  12. if this accommodation is of a temporary or contingency nature, comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services;
  13. respond truthfully to enquiries by an authorised Corrective Services officer about his activities, whereabouts and movements generally;
  14. not have any direct or indirect contact with a victim of his sexual offences;
  15. disclose to an authorised Corrective Services officer upon request the name of each person with whom he associates and respond truthfully to requests for information from an authorised Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour;
  16. notify an authorised Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or usually driven by him, whether hired or otherwise obtained for his use;
  17. abstain from the consumption of alcohol;
  18. abstain from the consumption of illicit drugs;
  19. submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by an authorised Corrective Services officer;
  20. disclose to an authorised Corrective Services officer all prescription and over the counter medication that he obtains and if he takes prescribed drugs, he shall take them only as directed by a medical practitioner;
  21. not visit premises licensed to supply or serve alcohol, without the prior written permission of an authorised Corrective Services officer;
  22. abstain from using any intoxicating inhalants including, but not limited to, petrol, glue, paint or solvents for the duration of this Order;
  23. attend upon and submit to assessment, treatment, and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by an authorised Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist;
  24. permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this Order;
  25. attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by an authorised Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;
  26. develop a risk management plan in consultation with a treating psychologist or psychiatrist and discuss it as directed with an authorised Corrective Services officer;
  27. not establish or maintain any unsupervised contact with a child under age of 16 years except with prior written approval of an authorised Corrective Services officer, other than in the case of the respondent’s own child if agreed between the respondent and the mother of the child or approved by the order of a court under the Family Law Act 1975.  The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such unsupervised contact can take place;
  28. seek written permission from an authorised Corrective Services officer prior to joining, affiliating with or attending on the premises of any club, organisation or group where it is reasonably suspected that there is child membership or participation;
  29. advise an authorised Corrective Services officer of any telephone number regularly used by him.

Footnotes

[1] His report of 11 June 2010.

[2] s 13(1) of the Act.

[3] s 13(6)(a) of the Act.

[4] Attorney-General for the State of Queensland v Sutherland [2006] QSC 268.

[5] Transcript at 1-16.

Editorial Notes

  • Published Case Name:

    A-G (Qld) v DGK

  • Shortened Case Name:

    Attorney-General v DGK

  • MNC:

    [2011] QSC 73

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    06 Apr 2011

Litigation History

No Litigation History

Appeal Status

No Status